DECISION & ORDER The question before the Court is whether the biological father’s consent to the adoption of his daughter by a non-related couple is required, where the child was surrendered by the biological mother. This Court held a hearing on August 20th, 21st and 22nd, 2019 and counsel submitted written summations on September 6, 2019. After careful evaluation of the testimony adduced at the hearing, this Court makes the following findings of fact and conclusions of law: Baby Girl S. was born on May 3, 2019. The child’s biological mother, S.P. (Ms. P.) gave the child to an unrelated couple, Jeanine and Kelly (Anonymous) by executing an extrajudicial consent pursuant to DRL 115-b on May 6, 2019. Ms. P. was unmarried at the time of the child’s birth. On May 7, 2019, Jeanine and Kelly (Anonymous) initiated a proceeding to adopt the subject child. Relevant Case History On June 4, 2019 A.R. (Mr. R.) signed a Paternity Petition requesting to be declared the father of the subject child. When the matter came before the Court on June 26, 2019, the birth mother appeared and consented to the entry of an Order of Filiation declaring Mr. R. the father of Baby Girl S. (Docket No.: P-8847-19). On June 6, 2019, the birth mother Ms. P. filed a Notice of Revocation of Consent (to the Adoption) with this Court. On June 7, 2019, the Court notified the potential adoptive parents of the mother’s revocation of consent. On June 14, 2019, the Court received notice from the potential adoptive parents of their intent to oppose the birth mother’s revocation. A conference was scheduled with the Court on July 2, 2019, during which time a hearing date was set for the initial purpose of determining whether the father’s consent to the adoption was required. On August 20, 2019 the parties, except for the birth mother Ms. P. who was absent, appeared in Court, and Mr. R. asked the Court to make a finding that his consent to the adoption is required. It is Mr. R.’s burden to establish that his consent to the adoption is required. In determining the issue of consent, the Court considers DRL §111 (1.) (e) and Matter of Raquel Marie X., 76 NY2d 387, 1990. In order to have the “maximum protection of the relationship — the right to consent to or veto an adoption — the biological father not only must assert his interest promptly but also must manifest his ability and willingness to assume custody of the child.” Raquel Marie X. Finding of Facts The Court credits Mr. R.’s testimony as follows: Mr. R. and Ms. P. met in March of 2018 shortly after she arrived in the United States from Guatemala. Mr. R. previously dated Ms. P.’s mother who “kicked” Ms. P. out of her home sometime around May of 2018. At that time Ms. P. was caring for her younger sister and two year old daughter, both of whom she took with her to a motel. Ms. P. contacted Mr. R. upon her arrival to the motel. After visiting Ms. P. and her family at the motel, Mr. R. decided that the motel was not a suitable place for them to live since people smoked at the motel and the motel room was foul smelling. He offered a room to Ms. P. in his sister’s home where he lived. Ms. P. accepted his invitation into their home around the end of June 2018, with her sister and two year old daughter, while Mr. R. slept in his car to ensure their privacy. When Ms. P. moved in, she was homeless and unemployed, and Mr. R. declined to ask her for money. By the end of July 2018, a romance grew between the couple and they began to take part in activities together such as going to the park, going out to eat, and going out for ice cream. Ms. P.’s daughter often went with them. Mr. R. described their relationship as excellent and loving at that time. They became boyfriend and girlfriend and planned a life together as their relationship became intimate. In August of 2018 Mr. R. suspected Ms. P. was pregnant as she felt unwell and wasn’t menstruating. On August 20, 2018 Mr. R. called the Peconic Bay clinic and made an appointment for the following week. The pregnancy was confirmed, and Mr. R. made the next appointment for prenatal care presenting himself as the unborn baby’s father. Mr. R. informed his mother, sister and “work” that he was going to be a father. Mr. R. helped Ms. P. apply and obtain health insurance. Ms. P. didn’t have a car or a driver’s license so Mr. R. drove her to her pre-natal appointments. Shortly after becoming pregnant, Ms. P. began to distance herself from Mr. R.. Mr. R. was extremely saddened but wanted to give her “space”. Ms. P. informed Mr. R. that she wasn’t prepared to have another baby. He assured her he would be responsible, and “do everything”. In September 2018, Ms. P. no longer wanted Mr. R. to touch her in a sexual way, and in respecting her space, he no longer sought to initiate intimacy. Mr. R. continued to take Ms. P. out to eat and took her to places, like the beach, 3 to 4 times per week. The couple continued to talk about their relationship and although Mr. R. believed Ms. P. loved him, he knew she was conflicted and unsure about committing to the future. Mr. R. continued to take Ms. P. out but as the pregnancy started to show, she no longer wished to go anywhere. Mr. R. continued to support Ms. P., buying groceries and paying for all their meals and expenses, always including her sister and daughter. In anticipation of the baby Mr. R. purchased a car seat and a rocking sleeper seat from Walmart. His efforts to improve the relationship and provide assurances about the future were not reciprocated by Ms. P.. By the end of September, the relationship had deteriorated to the point that Ms. P. would return his calls or text messages. Mr. R. continued to talk about his unborn daughter and the family he looked forward to having with Ms. P.. When Ms. P. expressed to Mr. R. that he did not have to be involved, he was devastated yet communicated to Ms. P. that nothing changed for him, asserting that they could still raise their daughter together. On October 2, 2018 Ms. P. was not feeling well and experiencing stomach pain which caused Mr. R. to be fearful for the baby and Ms. P.. He took her to Stony Brook hospital and identified himself to the doctor as the father of the baby. While they were at the hospital Ms. P. fainted and Mr. R. expressed serious concern, aware that Ms. P. considered terminating the pregnancy. Ms. P. presented at the hospital with “Major Depressive Disorder, single episode, unspecified”, and the hospital notes indicate, regarding the couple, that “Both are very unhappy and are not able to talk to each other or be supportive of each other to make decision about pregnancy. Pregnant patient has already decided that she wishes to terminate the pregnancy, partner is willing to allow her to make this decision but is not in agreement.” (See, Respondent’s exhibit “E” in evidence) Contrary to the contentions of the prospective adoptive parents that “Nowhere is Mr. Rios’ name even mentioned” in the hospital and prenatal clinic records is disingenuous. The Court found Mr. R. to be credible and his testimony regarding the October 2, 2018 hospital visit is clearly corroborated by the hospital notes. Mr. R. asserted that he had no choice in the decision because it is Ms. P.’s “body”. Mr. R. did see the baby in a sonogram that day which made him happy and relieved. Upon discharge a few hours later Mr. R. took Ms. P. home and while she rested, he picked up food and paid for a prescription for her. Mr. R. took Ms. P. to a follow-up psychiatric appointment as, in addition to pre-natal care, she was being treated for anxiety and depression. In October, November and December, the relationship between the couple completely deteriorated. Ms. P. started to go out with a new boyfriend. She was going out at least twice a week and although Mr. R. saw the new boyfriend, he did not interfere, because he did not want “there to be any issues.” It was abundantly clear to Mr. R. that Ms. P. was not receptive to his help. Nevertheless, he continued to pay rent to his sister for him and Ms. P. and communicated continually that he would provide all necessities for her and the baby. By December 2018, Ms. P. would go out often and not come back until morning. Although he was aware their relationship was ending, Mr. R. told Ms. P. he still wanted her to stay in his home so the baby would be born there. She was angry and told him the baby wasn’t his. He was heartbroken but respected her wishes and gave her space, primarily for fear that she would “do something crazy” like abort the baby. Ms. P. no longer wanted Mr. R. to take her for pre-natal appointments because she expressed wanting to do it herself. He respected her wishes, still made the appointments, and gave her cab fare to get to the clinic. On December 20, 2018, Ms. P. moved out of Mr. R.’ family home while he was at work, which he was informed of later through a message from his mother. Ms. P. took items from Mr. R.’s home including a television. Ms. P. did not inform Mr. R. where she was moving, secreting herself from him. Subsequently, in March 2019, Mr. R. found out where Ms. P. was working and went to see her. He sought to make plans for the baby and provide support for the child and mother. Ms. P. rebuffed him. Since she previously talked about giving the child up for adoption. Mr. R. made it clear that if that were the case, he would take the baby and raise her himself. Ms. P. assured him that she would not give the baby up. Having done a “countdown”, Mr. R. surmised the baby would be born around April 25, 2019. He tried contacting the clinic to find out if the baby was born but was denied information as he was not authorized by Ms. P. to receive information. He learned of his daughter’s birth from a social worker at the hospital. Upon further inquiry, he discovered that the mother no longer had the baby, as she had given her to the adoptive parents in the hospital, he promptly sought the advice of an attorney. Thereafter Mr. R. filed a paternity petition. The Court heard testimony from Janine, one of the adoptive parents, on the limited issue of actual contact she or her wife Kelly had with Mr. R.. Janine’s testimony indicated that Mr. R. was not present at the Peconic Clinic on March 28, 2019 or May 2, 2019 when Janine & Kelly were present. Throughout the process of making adoption plans, Janine was in contact with Ms. P. and her employer Lillian, who acted as an interpreter between birth mother and potential adoptive parents. Janine testified to being told that there was no father but later understood that there was a father who Ms. P. claimed was not interested in being involved. Conclusions of Law It is well-established that “[F]or the biological father’s consent to be required before an adoption may proceed, he ‘not only must assert his interest promptly (bearing in mind the child’s need for early permanence and stability) but also must manifest his ability and willingness to assume custody’ during the six months prior to the child’s placement (Matter of Seasia D. v. Mr. and Mrs. Anonymous, 10 N.Y.3d 879, 890 N.E.2d 875, 860 N.Y.S.2d 760 (2008) quoting Matter of Raquel Marie X., 76 N.Y.2d 387, 402, 559 N.E.2d 418, 559 N.Y.S.2d 855 [1990]). Judicial evaluation of the unwed father’s conduct in this key period may include such considerations as his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child” (Matter of Raquel Marie X., supra at 408, 559 N.E.2d at 428, 559 N.Y.S.2d at 865). The Court in Raquel Marie X., noting the impossibility of an unwed father in forming a custodial relationship with a new-born placed for adoption at birth, recognized a “constitutional right to the opportunity to develop a qualifying relationship with the infant” (76 NY2d supra at 402) but cautioned that this right will be lost if the father fails to timely exercise his rights or take the necessary legal steps to substantiate it. “Consequently, in an adoption proceeding by strangers, an unwed father who has been physically unable to have a full custodial relationship with his new-born child is also entitled to the maximum protection of his relationship, so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child” (Id.). As Baby Girl S. was placed for adoption on May 6, 2019, the six month period prior to her placement was from November 6, 2018 through May 6, 2019. The birth father’s actions throughout this six month period demonstrated his “ability and willingness to assume custody” (Id.,76 N.Y.2d at 402, 559 N.E. 2d at 424, 559 N.Y.S.2d 861). During the initial period in the couple’s relationship, after Ms. P. became pregnant, Mr. R. publicly acknowledged that he was going to become a father. He paid 100 percent of the household expenses while the mother resided with him. He initiated Ms. P.’s access to pre-natal-care and provided emotional support. After Ms. P. began to distance herself from Mr. R., he continued to support her and acknowledged his interest in raising the unborn child even though he and Ms. P. were no longer a couple. The fact that there came a time when the couple were no longer living together does not change the Court’s analysis. The birth father continued to manifest his willingness and ability to assume custody even after the mother secreted herself from him. In a case cited by petitioners in closing memoranda, the court found the father’ did “little or nothing to establish a substantial parental tie to the child”. Having been unemployed through most of the pregnancy, drank heavily, smoked marihuana, used crack cocaine and LSD, and became possessive and violent”, Raymond AA dispensed with the need for the biological father’s consent to adoption (Raymond A.A. v. Doe, 217 AD2d 757 [3d Dept 1995]). Unlike Raymond, here, there is no evidence of inherent unfitness of the birth father. (Matter of Isabella TT. (Dalton C.), 127 AD3d 1330, 1330 [3d Dept 2015]). Mr. R. declared his interest and desire in being a father and raising the baby since he learned of the pregnancy. When Mr. R. knew that the birth mother was pregnant, he arranged for and attended at least 3 pre-natal medical appointments with her, until she would no longer allow him to. Although during the first stage of the pregnancy Mr. R. may have planned that he and the birth mother were going to be together, it was clear that after Ms. P. left him that he was interested in providing for his daughter alone, willing to provide financial and moral support even after being rebuffed (Matter of Baby Girl N. (Milagros S. — Leeanders H.), 122 AD3d 858, 859 [2d Dept 2014]). Mr. R. has been gainfully employed and has been actively planning for the birth of his child. On its own motion, the Court takes judicial notice of the affidavit sworn to by Sindy Paniagua on May 3, 2019 made pursuant to D.R.L. §111 and contained in the adoption filing under the above captioned docket number. Ms. P. completed the affidavit in which she states1 “That no father has made efforts to support your deponent during her pregnancy or after the birth of the child except: NONE” ; “That no father has evidenced a willingness to assume full parental responsibilities (both financial and emotional) for the child except: NONE” ; The name and address of the biological father of the child is : N/A” and The identity of the biological father of the child is not known to me for the following reasons: I choose not to name him”. The fact that Ms. P. declined to identify Mr. R. serves to confirm the father’s lack of knowledge of the child’s placement for adoption and Ms. P.’s intent to frustrate his efforts to assert his parental interest. Ms. P.’s statements in the affidavit make it clear to the Court that she sought to keep Mr. R. out of the picture. The petitioners asked the Court to find certain assertions of the birth father to be incredible by considering purported inconsistencies between statements Mr. R. made during a deposition taken on July 29, 2019 and the in-court testimony taken in August of 2019. For example, they assert that the birth father stated in court that he purchased a car seat and sleeper seat in September of 2018, yet, when deposed he stated making the purchases sometime in January or February of 2019. The Court believes these purchases were made and does not find the statements to reflect on Mr. R.’ credibility. The petitioners also try to draw inconsistencies between deposition testimony and in-court testimony where Mr. R. describes when he an Ms. P. became “romantic”, “intimate” or had “intercourse” interchanging the statements as if the words contain the same meaning. With respect to the minor inconsistencies in Mr. R.’ respective testimonies, such inconsistences did not affect the substance of the evidence of paternal action. Moreover, it is well established that minor inconsistencies in the testimony do not render such testimony unworthy of belief (see, Matter of Cashmere T. (Andrew S.), 161 A.D.3d 1177, 77 N.Y.S.3d 477 [2d Dept. 2018]). Any such inconsistencies in the birth father’s testimonies were insufficient to render the central details of his accounts unworthy of belief (see, Matter of Mayra C. (Adan C.), 163 A.D.3d 808, 2018 N.Y. App. Div. LEXIS 5235 [2d Dept. 2018]). The Court finds Mr. R. to be sincere and credible. It is noteworthy that Mr. R. was not conniving and did not try to put himself “in the best light”. He testified with candor that comported with his demeanor and body language. It is well established that as trier of fact, the Court’s “…determination regarding the credibility of the witnesses is entitled to great weight” (Strully v. Schwartz, 255 A.D.2d 593, 593, 680 N.Y.S.2d 871, 872 [2d Dept. 1998]; see also, Matter of Jemima M. (Aura M.), 151 A.D.3d 862, 56 N.Y.S.3d 563 [2d Dept. 2017]; Matter of Sadiq H. v. Karl H., 81 A.D.3d 647, 915 N.Y.S.2d 867 [2d Dept. 2011]) and when “…there is conflicting testimony and the matter turns upon the assessment of the credibility of witnesses, the factual findings of the hearing court must be accorded great weight” (Matter of Amparo B.T. (Carlos B.E.),118 A.D.3d 809, 810, 987 N.Y.S.2d 199, 200 [2d Dept. 2014], quoting Matter of Lauryn H. v. William A., 73 A.D.3d 1175, 1176, 900 N.Y.S.2d 764, 765-66 [2d Dept. 2010], quoting Matter of Heather S., 19 A.D.3d 606, 608, 797 N.Y.S.2d 136, 139 [2d Dept. 2005]). The Court notes that in weighing the probative force of conflicting testimony, “…the Trial Judge has the advantage of viewing the witnesses” (Matter of Jayda D.-B., 33 A.D.3d 998, 999, 822 N.Y.S.2d 723, 724 [2d Dept. 2006], quoting Fasano v. State, 113 A.D.2d 885, 888, 493 N.Y.S.2d 805, 807 [2d Dept. 1985]). After thorough review of the testimonial and documentary evidence and careful analysis of the applicable case law, including the criteria to be applied in determining whether the father’s consent to the adoption was necessary, the Court finds that the father has sufficiently demonstrated a “manifestation of parental responsibility.” In showing the necessary parental responsibility his consent is necessary for an adoption of his child by a third party, where (1) he publicly acknowledged his paternity in 6-month period prior to child’s placement, (2) he offered to pay pregnancy and birth expenses, and continued to until the mother declined offers, and (3) the reason the father did not assume custody was because he did not believe that mother would actually place the child for adoption, and (4) mother gave custody of child to adoptive parents without knowledge of father. In re Kiran Chandini S., 166 A.D.2d 599, 560 N.Y.S.2d 886, 1990 N.Y. App. Div. LEXIS 12532 (N.Y. App. Div. 2d Dep’t 1990). Mr. R.’s claim that he provided financial support, took steps to establish legal responsibility for the child and otherwise evinced a commitment to the child are supported in the record. As noted above, during the 6 month period prior to the placement of the child for adoption, Mr. R. manifested intent to assume parental responsibility. (see Matter of Raquel Marie X., 76 NY2d 387, 559 NE2d 418, 559 NYS2d 855 [1990]; Matter of Kiran Chandini S., 166 AD2d 599, 560 NYS2d 886 [1990]). Parenthetically, the Court notes that the evidence shows that the birth father’s assertions were also evident before and after the six-month period, as the birth father promptly asserted his interest in the child, manifested his ability and willingness to assume custody of the child, and provided financial and moral support to the birth mother. The Court finds that the birth father, Adrian Rubio-Rios has met his burden by a preponderance of the evidence that he satisfies the definition of a father whose consent to the adoption is required. Accordingly, the Petition for Adoption is dismissed. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST
